Can war *legally* be declared against al Qaeda?
You make good points about the buisness implications of a declaration of war.
The point I'm getting at, though, is: Isn't war (by definition) a state of beligerence between nation states? I think it is.
How did the US handle things like post-civil-war Indian wars? Were those declared by Congress? (And even if they were, the analogy wouldn't be exact because in some respects Indian tribes are nations according to US law.)
I think that 107-40 is the closet the US Congress could come to a legal declaration of war against al Qaeda. I don't think US and international definitions of war fit with what has happened. That is, I think it's a definition problem, not an illustration that it's somehow
not a war.
Bruce Fein has an [link|http://www.washtimes.com/commentary/20020820-18641767.htm|article] at the Washington Times discussing the history of declarations of war, etc. It's an interesting read, IMO, whether you agree with him or not. He says that Congress has only declared war 5 times.
Constitutional practice, however, has overwhelmed the specific expectations of Madison and Hamilton. During its 1973 hearings on the War Powers Resolution, the House Foreign Affairs Subcommittee on National Security Policy and Scientific Developments listed 199 instances of United States military hostilities without a declaration of war (of which there have been but five, and none since World War II). Only 81 of the 199 even arguably rested on prior legislative authority. The remaining 118 cases included President Franklin Roosevelt's warring against Nazi submarines before Pearl Harbor, and President John F. Kennedy's naval blockade of Cuba during the Cuban Missile Crisis.
Constitutional practice and evolution have thus superannuated the congressional power to declare war. But the result seems untroublesome.
The power of the purse still empowers Congress to thwart or terminate war making by the president. In 1973, for instance, Congress terminated all funds for American combat activities in Cambodia and Laos after Aug. 15 of that year. That precedent discredits the claim that voting to cut appropriations while our troops are militarily engaged is politically prohibitive. And Congress may impeach, convict, and remove a president for abusing warmaking powers.
Moreover, the reasons at our constitutional birth for disfavoring war initiation by the executive have lapsed. Then, the popular vote and public opinion held little sway in presidential elections. Today, the president is as much a creature of the common man as are senators and representatives.
Further, the two-term limit on the presidency enshrined in the 22nd Amendment has arrested executive inclinations to exploit war in hopes of permanency in the White House.
Finally, requiring a congressional declaration of war before President Bush invades Iraq smacks of imprudence. Tactical surprise, like our Overlord landings in World War II, would be confounded. And the leaking of classified information by Congress that could endanger our soldiers would be as certain as the Archimedes principle.
FWIW.
Cheers,
Scott.
